K.M. Joy v. Princy Shaji

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939** **CRP.No. 547 of 2017** **------------------I.A NO.4867/2016 IN O.S NO.235/2013 OF ADDITIONAL SUB COURT, PALAKKAD** **-----------** ## **PETITIONER REVIEW PETITIONER/PLAINTIFF** **-------------------------------------** **K.M.JOY, AGED 55 YEARS, S/O MATHAI, KALAPURACKAL HOUSE, KANDUKADU P.O., CHETTIKAD, MADAKKATHARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN-680651.** ## **BY ADV.SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENT/RESPONDENT/DEFENDANT :** **---------------------------------** **PRINCY SHAJI, AGED ABOUT 38 YEARS, W/O SHAJI. K.SIMON, KODIYATTIL HOUSE, KATTILAPOOVAM DESOM, MADAKKATHARA VILLAGE, THRISSUR TALUK, NOW RESIDING AT PATTIKKAD P.O, THRISSUR DISTRICT, PIN-680652.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.V.** ## **ALEXANDER THOMAS, J** ## **-----------------------------------------C.R.P.No. 547 of 2017 -----------------------------------------------------Dated this the 5[th] day of January, 2018** ## **J U D G M E N T** The order under challenge, in this Civil Revision Petition is the one rendered by the Trial Court concerned (Additional Subordinate Judge, Palakkad), on 19.07.2017, whereby the review petition filed by the petitioner/plaintiff to impugn the rejection of the plaint for non-payment of the court fee, has been dismissed. 2. Heard, Sri. Dinesh Mathew J. Murikkan, the Learned Counsel appearing for the petitioner/plaintiff and Sri. P.B. Krishnan, the Learned Counsel appearing for the respondent/defendant. 3. The revision petitioner herein is the plaintiff and the respondent herein is the defendant in O.S.No. 235/2013 on the file of the Additional Sub Court Palakkad. It is not in dispute that the plaint was rejected for non-payment of balance court fee and the said order was rendered without hearing the counsel for the plaintiff in as much as he could not attend to the said court on that day. Thereupon the petitioner had filed I.A.No. 4860/2016 in O.S.No. 235/2013 under Order 46 of CPC to review the order **C.R.P.No. 547 of 2017** ..2.. ## rejecting the plaint on 29.09.2015. 4. A defect was noted in the said review petition. After curing the defect, the review petition was duly filed but there was a delay of 30 days in re-presenting the review petition after curing the defect. The petitioner had filed I.A.No. 3701/2015 in O.S.No. 235/2013 to condone the delay in re-presenting the review petition after curing defects. I.A.No. 3701/2015 in O.S.No. 235/2013 was allowed on 21.12.2016, directing the petitioner to pay Rs. 1,000/- as cost within 15 days. It is not in dispute that the cost was duly paid on 03.01.2017 and the review petition was taken to file as I.A.No. 4867/2016 in O.S.No. 235/2013. Thereafter the petitioner had remitted the balance court fees on 20.01.2017 immediately on the review petition being taken to file and numbering the same. 5. Later the court below has dismissed the above said review petition, filed as I.A.No. 4867/2016 in the above O.S.No. 235/2013 on the ground that the balance court fee was remitted only on 21.01.2017, that is one year and three months after filing the review petition. The said reasoning of the Trial Court in the impugned order appears to be wrong. In the review petition filed by the petitioner, a defect was noted by the Registry of the court below and the petitioner **C.R.P.No. 547 of 2017** ..3.. had cured the defect, but there was a delay of 30 days in that regard for which a separate application was filed for representing the review petition after curing the defect. I.A.No. 3701/2015 in the O.S.No. 235/2015 was filed to condone the delay in representing the review petition after curing the defects. The said I.A was allowed on 21.12.2016 after directing the petitioner to pay cost within 15 days. The said cost was also paid within the said time limit. It is thereafter, the review petition was taken to file and numbered as I.A.No. 486/2016. It is also not in dispute that the petition to condone the delay in representing the review petition was allowed only on 03.01.2017. Immediately thereafter the petitioner had remitted the balance court fee on 21.12.2017. Therefore, the petitioner could not have remitted the balance fee before the numbering of the review petition. Hence, the above said reasoning of the Trial Court in the impugned order dated 19.07.2017 that there was a delay of one year and three months after filing the review petition in remitting the court fee etc. is wrong. 6. The Counsel for the respondent has submitted that the remedy of a party like the present petitioner who is aggrieved by the order rejecting the plaint for non-payment of the balance court fee is **C.R.P.No. 547 of 2017** ..4.. not to file a review petition but to file an appeal under Section 96 of the CPC as has been held in t he decision in _**Mable v. Dolores**_ reported in _**2001 KHC 467 = 2001(2) KLT 612**_ . The abovesaid contention raised by the respondent based on the Division Bench decision of this Court in _**Mable v. Dolores**_ reported in _2001 (2) KLT 612_ , does not appear to be tenable. A reading of the said judgment in _**Mable's case**_ supra makes it clear that what has been held therein, more particularly in para 8 thereof, is that the court can exercise its inherent power, which is saved by Sec.151 of the C.P.C. in situations where there is no specific provision in the Code for grant of relief to a party in appropriate cases and when a rejection of the plaint under O.VII R. 11(c) of the CPC is a decree and the party has a substantive right to appeal under Sec.96 of the CPC and, in cases where he is able to make out a case for a review under O.XLVII of the Code, the question of exercise of the inherent jurisdiction of the court, normally does not arise. It will be profitable to refer to para 8 of the abovesaid decision in _**Mable's case**_ supra, which reads as follows: (see KLT report) _“8. Then the question is whether the court could exercise the so called inherent power available to it when the plaintiff invokes its jurisdiction under S. 151 of the Code of Civil Procedure. It is now well settled that the court can exercise its inherent power, which is saved by S. 151 of the Code of Civil Procedure, in_ **C.R.P.No. 547 of 2017** ..5.. _situations where there is no specific provision in the Code for grant of relief to a party in appropriate cases. When a rejection of the plaint under O. VII R. 11(c) of the Code is a decree and the party has a substantive right to appeal under S. 96 of the Code of Civil Procedure and, in cases where he is able to make out a case for a review under O. XLVII of the Code, the question of exercise of the inherent jurisdiction of the court, normally does not arise. In a case where there is another remedy provided to the party by the Code, the court cannot ordinarily resort to its inherent power in substitution of that remedy. A remedy by way of appeal has necessarily to be understood as a substantive remedy available to a party. When an appeal is provided, the party aggrieved gets an opportunity to have his whole case reconsidered by the appellate court. It is therefore clear that there is no occasion for the court to exercise its inherent power in such a situation. The Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527) had laid down that the inherent power of the court can be exercised only in the absence of a speciffic provision in the Code and if a matter is covered by any of the specific provisions of the Code, no question of the court exercising its inherent jurisdiction would arise. It is therefore clear that the plaintiff is not entitled to invoke the jurisdiction of the Court under S. 151 of the Code of Civil Procedure when a plaint gets rejected in terms of O. VII R. 11 of the Code. In Varghese v. Devi Academy (1999 (1) KLT 440), the learned single Judge of followed a decision of this Court in Gopalakrishna Pillai v. Narayanan (AIR 1959 Kerala 406). That decision, in turn, was rendered following a decision of the Travancore High Court in John v. Kuriyan (26 Travancore L.J. 932). It has to be noted that both these decisions were rendered before the Supreme Court clarified the scope of S. 151 of the Code of Civil Procedure or the entitlement of the court to exercise its inherent power in the face of other specific provisions in the Code in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527). This principle is reiterated also in Arjun Singh v. Mohindra Kumar (AIR 1963 SC 993) and in Ram Chand and Sons Sugar Mills v. Kanhayalal (AIR 1966 SC 1899). With respect, it is not possible to accept the principle laid down in the decisions in Gopalakrishna Pillai v. Narayanan (AIR 1959 Kerala 406) and in Varghese v. Devi Academy (1999 (1) KLT 440) in the light of the decision of the Supreme Court. We may notice here that some of the High Courts have taken the view that the power under S.151 of the Code cannot be invoked to restore the suit in a case where a plaint has been rejected under O. VII R. 11(b) or (c) of the Code of Civil Procedure. With respect, we feel that it is the correct view to take. We are therefore of the view that the decisions in Gopalakrishna Pillai v. Narayanan (AIR 1959 Kerala 406) and in Varghese v. Devi Academy (1999 (1) KLT_ **C.R.P.No. 547 of 2017** ..6.. _440) do not lay down the correct law.”_ 7. Thus it is clear from a reading of the abovesaid judgment of the Division Bench of this Court in _**Mable's case**_ supra that it has not been laid down therein that the remedy of a party, who is aggrieved by the order rejecting the plaint for non-payment of balance court fee, is not to a file a review petition, but only to file an appeal under Sec.96 of the C.P.C. as now contended by the learned counsel for the respondent. What has been held therein is that invocation of the inherent power of the civil court under Sec. 151 of the C.P.C. in such case involving rejection of plaint for non-payment of balance court fee is not right and proper, inasmuch as there is an appellate remedy under Sec.96 of the C.P.C., as the rejection of the plaint under O. VII R. 11(c) of the Code is a decree. Further, it has been clearly laid down in para 8 of _**Mable's case**_ supra that when a party has a substantive right to appeal under Sec.96 of the CPC or in cases where he is able to make out a case for a review under O. XLVII of the CPC, then the question of exercise of the inherent jurisdiction of the court, normally does not arise. The observations of this Court in para 8 make it clear that there could be cases where the aggrieved plaintiff could make out grounds for review under Order XLVII of the **C.R.P.No. 547 of 2017** ..7.. C.P.C., then even such a remedy is not foreclosed, provided grounds of review are disclosed. What has been held therein is that when the remedies like appeal under Sec.96 of the C.P.C. or review under Order XLVII of the C.P.C are provided, then the invocation of inherent power of the civil court under Sec. 151 of the C.P.C. is not proper, etc. 8. There is yet another aspect of the matter. It is to be noted that in the instant case the petition for review was rejected for nonpayment of the balance court fee on 29.09.2015. Certainly, the petitioner is at least entitled to file an application at least to recall the said impugned order, in as such as the counsel for the petitioner/plaintiff was not heard before the said order was passed, as he could not attend to the court on that day. Though the application, I.A.No. 4867/2016 was filed as review petition under Order 46 of the CPC, this Court is of the view that the said application in substance could at least be treated as application to recall the said order on the ground of non-hearing of the party and for passing fresh orders after hearing the party. 9. Therefore, in the light of these aspects the decision of this Court in _**2001 KHC 467=2001(2) KLT.612**_ will not apply to the **C.R.P.No. 547 of 2017** ..8.. facts and circumstances of this case. The impugned order dated 19.07.2017 passed in this case by the trial court on I.A.No. 486/2016 in O.S.No. 235/2013 will stand set aside and the said application will stand allowed. However, there is one technical aspect of the matter. No specific judicial order has been passed by the court below allowing the plaintiff to remit the balance court fee as envisaged in proviso to Section 4(a) of the Court Fee and Suit Valuation Act, 1959. Instead of again remitting the matter and putting the parties to unnecessary proceedings, this Court is of the view that, that aspect of the matter could be resolved by exercising the visitorial powers of superintendence conferred on this Court under Article 227 of the Constitution of India. 10. Accordingly, it is ordered that the action taken by the Registry of the court below in accepting the balance court fee without the judicial order will stand validated. With these observations and directions, the above said Civil Revision Petition will stand finally disposed of. ## **Sd/ALEXANER THOMAS, JUDGE** \\True Copy\\ PA to Judg **e** _Dxy_